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Joanne Mariner

Global Views on Closing Guantanamo (the Right Way)


Monday, June 8, 2009

It was interesting, in watching President Obama's speech in Cairo last week, to see which statements were welcomed with applause and which were not. His quotations from the Koran were a hit, as was the Arabic greeting he employed. And his mention of democracy—in a region notably lacking it—evoked immediate rousing cheers and whistles.

Another reaction was telling. When the president reminded his audience that he had "ordered the prison at Guantanamo Bay closed by early next year," the applause was vigorous and sustained.

President Obama referred to Guantanamo's planned closure without any qualifiers, but, judging by his speech on national security a couple of weeks earlier, the reality is more complicated. While Guantanamo may close, the administration seems to be planning to hold some number of former Guantanamo detainees without charge in US prisons, possibly under the same legal rationale as is currently used to hold them at Guantanamo.

To mention those complications in Cairo might have spoiled the moment. But if President Obama honestly believes that global outrage over Guantanamo will dissipate as long as the location closes, while the underlying system of detention remains in place, he's wrong.

European Detention Practices

Continued reliance on detention without charge would leave the United States dramatically out of step with its key allies in Europe and North America.

No other European or North American democracy has resorted to long-term detention without charge outside of the immigration context. They all deal with terrorism using the criminal justice system. Although the United Kingdom and Canada have held suspected terrorists for extended periods of time while seeking to deport them, neither country held anyone for as long as the US has already held people at Guantanamo, and neither country is currently holding anyone indefinitely without charge.

The UK detention scheme, which covered a total of 17 suspects, was struck down by the House of Lords in 2004 as inconsistent with the UK's fundamental human rights obligations. The Canadian system of detention pending deportation applied to fewer than eight people post-9/11, with most of them being held less than two years.

Some cite France as an example of a country that relies on preventive detention, but they misunderstand the French system. In France, detention without charge of terrorism suspects is limited to 6 days. After being criminally charged, as in the US, defendants can be detained pending trial—what some people call preventive detention—but it is important to recognize that such detention is a step in the criminal justice system.

The France system is also instructive for its much-vaunted preventive qualities: its emphasis on preventing terrorist crimes from occurring, rather than punishing them after the fact. Notably, a review of French counterterrorism laws suggests that they are quite similar to broad US rules on conspiracy to commit terrorism.

Repressive Governments

Let's turn now to countries that do rely heavily on preventive detention. It bears emphasizing that indefinite detention without charge or trial is a hallmark of repressive governments like Egypt, Libya, and Syria, which hold hundreds in preventive detention, just as it was a defining characteristic of apartheid-era South Africa, which held tens of thousands of government opponents in preventive detention as security threats during the last decades of white rule.

If the United States were to continue to bypass accepted criminal justice rules by relying on detention without charge, we would embolden repressive governments like these.

This claim isn't speculative; we've already seen the proof of it. In Egypt, notably, high government officials have cited US post-9/11 security measures to justify renewing that country's state of emergency. In Libya, during his 2002 address to the nation, head of state Mu'ammar Qaddafi bragged to the Libyan public that he was treating terrorist suspects "just like America is treating [them]."

And in December 2007, when US officials ventured to criticize Malaysia's decision to arrest and detain five Hindu rights activists under that country's administrative detention law, Malaysia's deputy prime minister pointed immediately to the detention of terrorist suspects at Guantanamo. He said that he would not feel the need to explain his country's detentions as long as Guantanamo detainees were still being held without trial.

Negative Global Impact

Except for a few governments that find US abuses to be a convenient justification for their own misdeeds, there is a strong global consensus that Guantanamo should close. This consensus has nothing to do with Guantanamo as a place; it reflects a strong distaste for Guantanamo as an approach.

Detaining people indefinitely without charge or trial is wrong. If the US government continues to rely on the practice, it will hearten a few repressive rulers, disappoint the broader public, particularly the Muslim public, and discourage the international cooperation that is essential for fighting terrorism effectively.

Joanne Mariner is a human rights attorney who lives in New York and Paris. Her columns for FindLaw are available in FindLaw's archive.

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